MauledAgain

Prof. James Edward Maule's more than occasional commentary on tax law, legal education, the First Amendment, religion, and law generally, with sporadic attempts to connect all of this to genealogy, theology, music, model trains, and chocolate chip cookies. Copyright 2004-2019 James Edward Maule.

Friday, September 30, 2016

Does Not Paying Federal Income Tax Make a Person Smart?

As reported by many sources, including the Wall Street Journal, “When Mrs. Clinton said there were years when Mr. Trump paid no taxes, he replied, ‘That makes me smart.’” The reference to taxes was in the context of federal income taxes. So, does paying no federal income taxes means, as Trump claims, that the taxpayer is “smart”? The answer is “No.”

Why is the answer “no”? Because even if paying no federal income taxes is a smart thing, in and of itself it doesn’t make the taxpayer smart.

First, if the smart thing or things that are done in order to reduce federal income taxes to zero are the product of the taxpayer’s advisers and return preparers, then the taxpayer ought not take credit for anything other than retaining those advisers. And even that act isn’t necessarily a measure of a person’s “smartness.”

Second, whether what is done to reduce the taxpayer’s federal income tax is a “smart” thing depends on what was done. Using the word “smart” is misplaced if the reason for not paying federal income taxes is tax fraud, business failure causing losses, mistakes in filling out the return, or engaging in activities that prevent the taxpayer from generating income.

So is Donald Trump “smart” because there were taxable years in which he paid no taxes? Suppose the reason Donald Trump did not pay federal income taxes is because he lost so much money in businesses that ended up bankrupt that his income was more than offset by business loss deductions. Suppose the reason constitutes tax fraud. If either of those is the reason, perhaps something other than “smart” was underway.

Until and unless Donald Trump’s federal income tax returns are available, it is impossible to determine whether “smart” things were done or whether “smart” decision were made. Whether Donald Trump is “smart” or “not smart,” or in between, it’s because of all sorts of things, only one of which is his federal income tax return situation. Even if not paying federal income taxes is a smart thing, it does not necessarily mean that the person doing the smart thing – or finding advisers who do a smart thing – is a smart person. Sometimes smart people do stupid things, and sometimes not-so-smart people do smart things.

Finally, being smart, in and of itself, ultimately means nothing. How does a person who is “smart” use his or her “smartness”? When I was a child I was told, by my mother, that being intelligent meant nothing. Why? I remember her words to this day: “There are plenty of intelligent people in prison.”

Wednesday, September 28, 2016

Carelessness and Tax Evasion

According to this story, the owner of several Atlantic City businesses admitted in federal court that he and his associates in one of the businesses deliberately hid profits in order to avoid paying more than $100,000 in federal taxes. He also admitted that he knew the business kept two sets of books, one that recorded the actual profits and one that reduced income for tax purposes. Accordingly, he pled guilty to tax evasion.

His attorney explained that the is client “got involved in a business” and owners, including the taxpayer, “were not very careful in recording tax receipts and including them in company and personal tax returns.” Prosecutors had described the arrangement as a structured scam in which two of the taxpayer’s partners, one of them the bookkeeper, deliberately failed to report revenue.

The taxpayer’s attorney hopes that his client’s philanthropic work will bring a sentence of probation rather than prison. The judge probably will take into account the fact that seven years ago the taxpayer was placed in pretrial intervention after being charged with blackmail.

What I don’t understand is how a deliberate plan to keep separate books in order to hide income and evade taxes is a matter of being “not very careful.” Carelessness in keeping tax-related information and carelessness in filling out tax returns is not uncommon. When identified, it can cause a taxpayer to incur civil penalties and additions to tax for negligence. It does not result in criminal prosecution. Tax evasion is not a matter of carelessness. Words matter.

Monday, September 26, 2016

Course Enrollment Matters, Even for Tax Purposes

Most people have heard at least one anecdote about a student who attempts to take a final exam in a course, only to discover that failure to have enrolled in the course shuts the door to the opportunity to earn a grade in the course. Most people have heard at least one anecdote about a student whose failure to enroll in a course causes the student to have insufficient credit hours to earn the desired academic degree. How many people realize that failure to enroll for a course can create adverse tax consequences?

In a recent case, Pilmer v. Comr., T.C. Summ. Op. 2016-59, the United States Tax Court held that IRS denial of a taxpayer’s claimed American Opportunity Tax Credit (AOTC) was correct, because the taxpayer failed to enroll in a course. The taxpayer was a student at Saddleback College, a community college offering two-year associate’s degrees and courses for credit transferable to four-year institution. During the spring 2012 semester, the taxpayer enrolled in a five-credit physiology course, and attended a three-credit health course on an “informal” basis. The taxpayer did not enroll in the latter course, and stopped attending after approximately eight weeks.

The taxpayer and her husband filed a joint federal income tax return. On that return they claimed an AOTC credit based on the taxpayer’s education expenses. The IRS disallowed the credit, and the dispute eventually ended up in the Tax Court.

The AOTC is available to eligible students. An eligible student is a student who satisfies two conditions. First, the student must be enrolled or accepted for enrollment in a degree, certificate, or other program leading to a recognized educational credential at an institution of higher education that is an eligible institution. Second, the student must carry at least half the normal full-time workload for the course of study the student is pursuing. The IRS did not dispute that the taxpayer satisfied the first condition. Whether the taxpayer satisfied the second condition was in dispute.

The taxpayer argued that her enrollment in the five-credit course combined with her informal attendance of the three-credit course constituted carrying at least a half-time workload. The Tax Court disagreed. It explained that under the regulations, a student carries a half-time workload if “[f]or at least one academic period that begins during the taxable year, the student enrolls for at least one-half of the normal full-time work load for the course of study the student is pursuing. The standard for what is half of the normal full-time work load is determined by each eligible education institution.” The IRS and the taxpayer agreed that in 2012 Saddleback defined a full-time workload as 12 academic credits and a half-time workload as 6 academic credits. The Tax Court pointed out that during the spring semester the taxpayer was formally enrolled in only the five-credit physiology course, and had never formally enrolled in or
received academic credit for the three-credit health course. Because the taxpayer was enrolled in only a four-credit course in the fall 2012 semester, qualification for the AOTC depended on the spring 2012 semester. Thus, because the taxpayer was enrolled only in a five-credit course during the spring 2012 semester, the taxpayer did not carry at least a half-time workload during either semester and was not entitled to the AOTC for 2012.

It is not clear why the taxpayer did not enroll for the three-credit health course. The taxpayer explained that the professor permitted her to attend and add the course later if there was room. Why did the taxpayer not add the course? Was there insufficient room? If so, why did it take eight weeks to make that determination? Was it a lack of money? Was it failure to add within the drop-add period? Was there sufficient room? If so, did the taxpayer lose interest in the course? Without knowing why the taxpayer did not enroll in the course, or in any other course in order to meet the six-credit-hour requirement for the AOTC, it is difficult to identify what the taxpayer could or should have done.

The lesson, though, for taxpayers generally who want to claim the AOTC is easy to discern. Determine how many credits are required for full-time status, multiply by 50 percent, round up, and be certain to enroll in, and remain enrolled in, enough courses to meet that requirement. Of course, considering how many students fail to enroll for courses and thus end up precluded from taking final exams or from earning a degree, it would not be surprising to learn that failures to qualify for the AOTC continue to afflict students in the future.

Friday, September 23, 2016

Supply-siders like to argue that by reducing tax rates, people and businesses will engage in economic activity squelched by higher tax rates, and that taxes on that increased activity will increase tax revenues. Not only have supply-siders argued this theory, they have managed to persuade voters to elect politicians who subscribe to the theory that reducing tax rates increase tax revenue. Of course, when this theory meets practical reality, its shortcomings are evident. The beneficiaries of the tax cuts benefit, at least in the short-term, and everyone else deals with the fallout.

Philadelphia officials subscribed to this supply-side strategy. It cut taxes and has plans to cut more taxes. Supposedly, businesses and people would flock to the city, generate economic transactions, and thus increase tax revenues. Though activity in the city has increased, it is unclear how much was driven by tax rate reductions, how much was driven by the national economic recovery during the past eight years, and how much was driven by the cultural behavior pattern of younger people wanting to live in urban settings. No matter what caused the increase in economic activity, the increase wasn’t enough to generate tax revenues to offset the price of the tax rate reductions. According to this story, the combination of the rate reductions and increased spending based on the anticipated tax revenue increases, the city’s general fund balance is at risk of disappearing. It could happen within a year, and when it does, the consequences will be the usual awful outcome. First, the city’s credit rating will be reduced, increasing its cost of borrowing, which in turn worsens the fund balance and increases deficits. Second, essential services will be cut, and the city might even be compelled to raise taxes, though the people hit by the tax increases are unlikely to be the people and businesses benefitting from the previous rate reductions. For example, the soda tax enacted by the city will generate less revenue than the revenue loss over the next five years from the rate reductions, and those paying the soda tax aren’t necessarily those benefitting from the tax rate reductions.

So now financial experts are advising the city to freeze the planned future tax rate decreases, or increase property taxes. Others suggest cutting spending, though none have identified specific programs to be jettisoned. They know that if they do, it will trigger an outcry. In the meantime, the city’s finance director argued that the best way to solve the problem is to “grow the economy” and that to do so, the city needs to “keep reducing tax rates.”

Perhaps it would be helpful for those dealing with this issue to invest a few moments and check out When a Tax Theory Fails: Own Up or Make Excuses? Though I’ve written numerous posts explaining why supply-side economic theory is inadequate, I selected that post from March because it explores one of the worst supply-side experiences in the nation, specifically, the mess in Kansas. There are lessons to be learned about what not to do, and how not to try to dig out of the consequences of doing what ought not to have been done. Perhaps inviting some Kansas officials to visit the city will raise revenue, and not just from the taxes collected on their hotel and restaurant bills.

Wednesday, September 21, 2016

Alimony or Property Settlement? Placement Versus Language

An attorney is retained to represent a plaintiff, and agrees to be compensated with a contingent fee. While the case is ongoing, the attorney and his wife end their marriage. They enter into a marital separation agreement. A section of the agreement titled “Spousal Support” provides that he is to pay her $7,000 per month and that the payment would end with either his or her death. Another section of the agreement titled “Division of Community and Co-owned Property” provides that she will receive some rental properties, along with ten percent of whatever contingent fee the husband receives from the ongoing litigation. No mention is made of whether that payment is made if he or she dies. The agreement also states that her ten percent interest in the fee “is a spousal support award from a contingent liability, the amount of which could not be definitely set at the time of the agreement, and that it “is taxable to [the wife] and
deductible to [the husband] as spousal support. This section of the agreement also provides that if the husband receives the contingent fee, he will pay a lump sum of $355,000 to the wife, and the agreement describes the sum as spousal support that would terminate on the wife’s death. Shortly after the couple’s divorce, the litigation settles, and the husband receives a $55 million fee spread out over several years.

Is this a law school hypothetical? No. It’s an actual case. It’s part of what happened in Leslie v. Comr., T.C. Memo 2016-171. There were other issues, and facts relevant to those issues, but those are left to other commentaries, including this excellent analysis from my colleague Les Book at Procedurally Taxing.

Essentially, the wife did not report the payments arising from the contingent fee as alimony. It is unclear, but one’s best guess is that the husband deducted the payments. The wife argued that test for determining whether the payments were alimony gross income is the seven-factor test of Beard v. Comr. The IRS argued that the enactment of section 71 made the Beard test obsolete. The IRS agreed.

The Tax Court looked at the language of section 71 and determined that the payments were alimony. There was no dispute that the payments were in cash, were made under a divorce or separation agreement, were made under an agreement that did not designate the payments as not includible in gross income nor deductible, were made by parties not members of the same household, and were not required if either party died. It was this last statutory requirement that generated additional disagreement. The wife argued that the obligation to make the payments did not end with her death. The court explained that although the agreement did not contain language that terminated the husband’s obligation to pay over part of the contingent fee on the wife’s death, and although the agreement did provide that payment of the $355,000 lump-sum was contingent on her not dying, applicable state law provided that amounts paid for support terminate on the death of either party.

The fact that the provision for payments based on the contingent fee were in a section of the agreement titled “Division of Community and Co-owned Property” does not matter. What matters is the language of the agreement, the language of the Internal Revenue Code, and the language of the applicable state law. Granted, the issue would have been even easier to decide, and perhaps would not have even made its way to the Tax Court, had the drafters of the agreement put the provision in the section of the agreement titled “Spousal Support” and included specific language providing that the payments would not be made if the wife died. It didn’t happen in this case, but hopefully those dealing with these issues in the future will fix the placement and include the language.

Almost thirty years ago, early in my teaching career, I read a case that reinforced my growing conviction that law faculty need not invent hypotheticals to get their students to think. It is not unusual for law faculty to make the hypotheticals outrageous in order to get students’ attention and to make what might otherwise be “boring” rather interesting. For example, though many consider tax classes to be “boring,” they often leave with the realization that tax practitioners often encounter fact situations no less eyebrow-raising than those encountered by those dealing with other areas of the law.

The case that caught my attention, Blackman v. Comr., 88 T.C. 677 (1987), involved a taxpayer who became angry with his wife. His employer had transferred him from Baltimore, Maryland, to South Carolina, and so he, his wife, and their children moved there. His wife did not like it there and returned with the children to Baltimore. During Labor Day weekend, in an attempt to persuade her to give life in South Carolina another chance, the taxpayer returned to the Baltimore home, which apparently had not yet been sold. He discovered that another man was living there with his wife and children, and the neighbors filled him in on the frequency of the man’s presence in the home, even before he and the family had moved to South Carolina. When he returned, his wife was having a party and her guests refused to leave when the taxpayer asked them to do so. He returned several times, he repeated his request, and he broke windows. The guests did not leave until 3 in the morning the next day. Later that day, he returned again, asked his wife if she wanted a divorce, they fought, and she left. After she left, the taxpayer took some of her clothes, put them on the stove, and set them on fire. He testified that he then dumped pots of water on the fire and put the fire out. However, the fire spread, the fire department arrived, but it was too late, and the house and its contents were destroyed.

When the taxpayer attempted to deduct the loss as a casualty loss, the IRS disagreed, and the Tax Court explained that even though negligence does not bar a casualty loss deduction, gross negligence does. In this instance, the fact that the fire fighters discovered the clothes still on the stove caused the court to disregard the taxpayer’s claim that he had extinguished the fire. In addition, the court concluded that allowing the deduction would violate Maryland’s public policy against arson, as it is a felony in Maryland to burn a residence while perpetrating a crime. Setting one’s spouses clothes on fire is a crime. In one of my many favorite sentences from the Tax Court, the opinion told us, “We refuse to encourage couples to settle their disputes with fire.”

For all the years I taught the basic federal income tax course, I included this case in the supplementary materials I provide to the students. I recall from time to time, though not every semester, I would point out, “Though this is an isolated instance, the lesson can be extended to other situations in which a person acts with gross negligence.” I might ask the class to think of situations not involving fire but that might far less unusual and that would involve gross negligence or intention. I wrote about this case more than ten years ago in Why Tax Law Can Fire Us Up.

It turns out that the clothes burning reaction to anger-provoking events is not as uncommon as I thought. On a recent Judge Mathis episode, the defendant admitted to coming home, finding her boyfriend cheating on her, and setting his clothes on fire. According to the defendant, “things got out of hand,” though it wasn’t revealed if the house burned down. The facts were incidental to the issues in the case, and there was no indication of what impact the events had on anyone’s tax returns. What is it with angry people burning clothes? Why clothes? Why fire?

And though I described the Judge Mathis episode as “recent,” I used that word as shorthand for “a Judge Mathis episode I recently viewed even though it is older.” I tend to catch these episodes haphazardly long after their original broadcast date. I’m sure I’ve missed hundreds of episodes that would supply this blog with years of material. I doubt I will ever see all of them, but it’s likely at least a few more will find their way to this blog.

Friday, September 16, 2016

Money, Taxes, and Education

In Pennsylvania, public K-12 education is financed through real property taxes. Not long ago, the state legislature imposed a limit on the annual increase that a school board could approve. To stem the adverse consequences of real property taxes that were increasing at rates exceeding inflation, the legislature limited annual increases to 2.4 percent. Of course, there are exceptions. One is to put a referendum to the citizens of the district for a higher increase. Another is to obtain approval from the state for exceeding the limit.

Recently, a Common Pleas judge, issuing a decision in a lawsuit brought by some taxpayers in Lower Merion Township, ordered the Lower Merion School District to revoke a 4.4 percent increase it had approved for 2016-2017. The judge agreed with the plaintiffs that the district had overstated deficits in order to justify the tax increases when it sought state approval. The judge determined that since 2006, the school district had cumulatively raised taxes by more than 53 percent, even though at the end of each fiscal year, it had a surplus in its account. The judge also noted that although the board could impose a 2.4 percent increase under the law, he didn’t think an increase of that magnitude was necessary.

According to this story, when the school board held its first meeting of the school year, people took sides. What I found interesting is how people bring totally different perspectives to the same set of facts.

Most of those who spoke were critical of the board’s decisions. They expressed unhappiness at the lack of transparency in the budget process, and they were dissatisfied with the misrepresentations about deficits that were in fact surpluses.

The board tried to justify its actions on account of “staggering enrollment growth.” Enrollment growth of that magnitude suggests an increase in the number of taxpaying entities in the district. In turn, that would dampen the percentage increase necessary to fund the district. The board also claimed that the courts had no jurisdiction to judge the appropriateness of its actions.

Some of those in attendance were delighted that the board did “whatever it took . . . to provide a top-notch education for Lower Merion children.” The district’s per-pupil expenditure, more than $31,000 per student, is the highest in the state. Yet the district ranks 480th in the state. Another district, which like Lower Merion geographically abuts the school district in which I live, spends $16,000 per student and is “consistently ranked higher than Lower Merion in state and national surveys.” The lawyer who filed the lawsuit also noted that the district had overstated special education and pension costs when it sought and obtained state approval for increases exceeding 2.4 percent.

Others who supported the board claimed that they “never had to wonder” what was being done with the tax revenue. Yet another speaker had pointed out the board’s refusal to explain an unidentified $3 million expenditure in its budget.

Though people can disagree on whether a school district should build up reserves, or how much those reserves should be, there ought not be disagreement about the inappropriateness of claiming that deficits exist when in fact there are surpluses. Nor should there be disagreement that misrepresenting expenditures to the state when seeking permission to increase taxes beyond the mandated limit is wrong.

Some Pennsylvanians advocate eliminating the real property tax as a school funding source and replacing it with something else. But no matter what type of tax is used to fund public education, the expenditure side needs to be reviewed carefully. A district that spends the most per pupil in a state ought to come out better than 480th. Perhaps its officials can have a conversation with those who manage the district that spends half that amount per student.

Wednesday, September 14, 2016

Tax Ignorance is Dangerous

Too many people are ignorant about taxes. Finding it difficult to complete a tax return is not tax ignorance. Tax experts find tax return preparation to be challenging. Tax ignorance in the form of not understanding general principles about taxation and not comprehending the significance of tax policy has repercussions far beyond the ability to fill out properly a tax return.

The latest example that I’ve encountered comes from a comment on an OpenVote page:

Im [sic] waiting for the next FBI investigation into Clinton's "illegal for you and I but not for her" situation to pan out before I vote. I honestly can barely afford to live now. I can't afford her tax increases.

I included the first sentence to put into context the second and third sentences, which are the ones that widened my eyes.

I tried to figure out who would be upset with proposed tax increases on high incomes. Could it be a very wealthy person living an outrageously expensive lifestyle? Could it be a poor person who has no clue as to why his fears are unfounded?

The comment triggered several replies, including this one:

If your [sic] thinking that she is going to raise taxes on the poor or middle class your [sic] not paying attention. I'm middle class and I have been taxed to death by the city and county I live in because the state has pretty much quit taxing the rich and wealthy corporations. Hillary only want to tax the millionaires and billionaires and the corporations that pay almost nothing because of loopholes put in place by republican policy at the state and federal level. Vote democrate [sic] if you want things to improve in this country. Go on line [sic] and read some of her economic policy proposals.

Though I included the entire comment, the key sentence is the final one. It boggles my mind how many people profess to know something though they haven’t examined the original source. Too many people are willing to repeat what another person says, without checking for themselves.

So how is it that proposals to restore taxes on the wealthy to what they were before the unwise tax cuts of 2001 get interpreted as tax increases on the poor and middle class? The answer is simple. The poor and middle class are fed misinformation so that they vote against their own economic interests. Why does that happen? The answer is simple. Those who dish out misinformation know that there are millions of people willing to buy into the nonsense. Why are they so willing? The answer is simple. It is much easier to listen to someone’s short sound bite, deceptive as it is, than to take the time to do some reading, analysis, and thinking.

My point isn’t to endorse a particular candidate. There are many other issues, besides tax policy, that enter into the electoral calculus. My point is that the nation suffers when people make voting decisions based on misinformation. Tax ignorance is dangerous, as is every other sort of ignorance, and the combination is deadly. Ignorance is not bliss.

Monday, September 12, 2016

Good at Long-Range Trash Can Hoops? Then You’re Ready to Be a Chemist, or Tax Return Preparer, or Surgeon

Excuse the sarcastic blog post title, folks. It isn’t a secret that I am a fan of education, a critic of people having responsibilities beyond their skill set, a campaigner against grade inflation, and an advocate for standards matched to the task being undertaken.

So it boggled my mind when a colleague passed along to me, and others, a link to an alarming story. No, it’s not from The Onion or some other satirical site.

At Ohio State, supposedly one of America’s finer institutions of higher education, ranked fifty-eighth, a member of the faculty teaching organic chemistry decided that the best way to assign grades to the semester’s first quiz was to use a skill unrelated to the course material. The class was told that if a student could make a long-range shot into a trash can – he threw a paper ball that the instructor had tossed out to the classa – then the student and all his classmates would receive a score of 100 on the quiz. He made the shot. His classmates think he is “the real mvp.”

What a joke. An opportunity to determine which students understand or know what the quiz was testing is thrown into the trash, no pun intended. Instead, student scores are inflated by an accomplishment that has nothing to do with what the students supposedly are being prepared to do. Organic chemistry is one of the most challenging courses on an undergraduate campus. The quip when I attended Penn was that a quiet weeknight on campus meant that an organic chemistry quiz was happening the next day. Every student with hopes or thoughts of attending medical school enrolls in organic chemistry. It’s not a course in which a student’s qualification to move on and study medicine should be measured by the ability of one student to play well at trash can basketball.

It’s unclear what would have happened had the student missed the shot. Would there have been a quiz with earned scores? Or would every student have received a zero? Was the offer to the student simply an excuse to avoid giving and grading a quiz?

Occasionally I receive emails from educational advisory groups suggesting that I “gamify” my courses. Though many people treat life as though it were a game, thinking there is a “reset button” if someone happens to be killed, life isn’t a game. Nor should education designed to prepare people for life be treated as a game. Letting students earn education points for successfully tossing a paper ball into a trash can makes sense when it’s the basketball coach preparing the team for its next match, and perhaps in some other instances in which long-range throwing accuracy is relevant to the skill being learned and evaluated. Just imagine being told, as you are wheeled into surgery, that the operation is being performed by someone who earned perfect scores in the surgery course, without realizing that it’s because classmates hit long-range trash can shots, recited an entire Walt Whitman poem by rote, named the last ten winners of the Oscar Award for Special Effects, and correctly answered a question about the batting average of the 1934 American League home run champion.

For those who are unfamiliar with, or who have forgotten, the issue, here is a brief summary. When a resident of a state with a sales tax makes a purchase in another state and brings the item back into the state, that resident must pay a use tax. Of course, compliance is unsatisfactory. The only items with respect to which states manage to collect most of the use tax that is due are items requiring title, such as vehicles, boats, airplanes, and a few similar items. The rise of Internet commerce has made it even more difficult for states to collect the use tax, because the number of people who crossed state lines to make purchases to bring home is dwarfed by the number of people who can make out-of-state purchases without leaving their home or business. So, of course, states want out-of-state retailers to collect the use tax on their behalf, even if the retailer has no physical presence with the state.

A variety of suggestions to fix the problem have been made. In Our Online Sales-Tax Loophole, Robert Verbruggen describes a proposal now getting a good bit of attention. Representative Bob Goodlatte of Virginia offers the following plan. An online retailer would collect a sales/use tax based on the sales tax rate applicable to the purchaser’s state of residence, but using the exemptions in the sales tax law of the state in which the retailer is based. The amounts collected would be distributed to the various states through a clearinghouse. Verbruggen points out, correctly, that there are pitfalls. Some states might refuse to participate. Retailers in states without a sales tax would need to use the exemptions set forth in the laws of some other state, perhaps the state where the online retailer has the highest revenue. Alternatively, the retailer could simply report the transaction to the purchasers’ “home state.”

As with almost every proposed solution, Goodlatte’s plan is a band-aid that might slow the revenue hemorrhage, but doesn’t get down to the underlying causes. Sales and use tax avoidance pre-dates the internet. The internet simply took a loophole and made it huge. Goodlatte’s plan does not address, for example, the sales and use tax revenue loss experienced by Pennsylvania, New Jersey, and Maryland when their residents drive to Delaware to make sales-tax-free purchases. Nor does it address the scheme through which a resident of, say, New Jersey, uses a prepaid debit card to make a purchase that is delivered to a friend or relative who lives in Delaware. A variation on the scheme is to have the Delaware friend or relative make the purchases, with reimbursement taking place out of the sight lines of the revenue department and the retailer.

Verbruggen concedes that the problem needs to be “handled at the federal level.” For those whose political philosophy includes reducing the power of the federal government and minimization of federal regulation, the idea of state tax collection shifting to a federal clearinghouse must be anathema. Verbruggen also points out that attempts to shut the door on tax avoidance and tax evasion arrangements are too easily seen by some people as “tax increases,” though I suppose those folks might consider the receipt of a speeding ticket as a “reduction in the legal speed limit.” Needless to say, I do not admire the intellectual shortcomings of those who think enforcement of an existing tax is a tax increase.

Perhaps a better approach is for states to seek voluntary contracts with out-of-state retailers, compensating them for serving as tax collectors. There may be state Constitutional provisions or legislation that prohibits contracting tax collection to out-of-state individuals or entities, though I doubt that is the case. For some businesses, being compensated to engage in use tax collection might help the bottom line.

Though taking this route doesn’t shut down, for example, the “use a friend or relative in a state without a sales tax” scheme, it is more consistent with free market principles than is converting out-of-state businesses into involuntary workers or setting up another federal bureaucracy with an additional layer of transactional transmission and another set of opportunities for errors, fraud, and complications.

Wednesday, September 07, 2016

The Perils of Tax Politics

Running for office presents candidates with numerous opportunities to slip up. This is particularly a problem when the issue is a complicated one. Taxation, for example, can present traps for candidates who are not careful with how they articulate their position.

Recently, there has been a call for exempting the value of Olympic medals from gross income. Some people think it’s wrong to require winning athletes to pay taxes on pieces of metal symbolizing their achievements. I disagree, but the point of this commentary isn’t whether an Olympic medal exemption makes sense. It’s to point out what happens when that issue becomes campaign fodder.

Senator Charles Schumer of New York, a Democrat, has introduced legislation that would add an Olympic medal exemption to the Internal Revenue Code. According to this news story, his Republican opponent, Wendy Long, criticized both Schumer and the proposal. She called the proposal “another example of cronyism in the tax code.” She added, “It makes no sense. My contention is that giving tax breaks as he does to his favored ones – the Broadway stars, the Olympic medalists, the hedge funders – means that a greater burned is placed on the average New Yorkers who toil in obscurity but work just as hart and are as deserving of a tax break.” She referenced members of the military, asking “Where’s the tax break for them? Even if they come home victorious and have won a war, instead of the 400 meter freestyle, no tax break for winning?”

Three thoughts crossed my mind when I read this. All three fit within the general reaction, “It makes no sense.”

First, the Broadway tax break to which Long apparently was referring is not a tax break for Broadway stars. It is a tax break for those who invest in live theater productions, making available to them the same tax break already in existence for television and movie productions. And the measure in question was the extension of the tax break, which had been enacted previously with an expiration date. I’m no fan of this tax break, but I’m even less of a fan of a tax break that treats television and movie productions more favorably than live theater. What matters is that this tax break accelerates tax deductions for investors, who are not members of “the middle class that Long claims Schumer pretends to champion.” And thus it is a tax break pretty much for the wealthy, a tax break in line with many others supported by the political party under whose flag Long is running. It would be great if she made it clear that she opposes the long-standing pattern of Republican tax breaks for the wealthy, but if she is elected she might find herself at odds with at least some of her political colleagues in the Senate. Still, describing the tax break as one for the actors casts the issue in the wrong spotlight.

Second, the tax break for hedge funds has been attacked primarily by Democrats and although some Republicans have joined in the criticism, perhaps seeking something that dresses them in populism, most Republicans and their supporters have opposed any attempt to change the tax break. Some even demand lower taxes for carried interest, as described in this article. Again, it is great to see another tax break for the wealthy coming under attack from a Republican, but what happens to Long’s Senatorial career if she is elected? And what happens to Schumer, a Democrat, who breaks ranks with his party and opposes elimination of the tax break for carried interests? Politics is a strange world, and in this instance, the two candidates are taking positions contrary to their labels. Perhaps they ought to switch parties?

Third, there exist a variety of tax breaks for members of the military. Long is playing on emotions when she suggests there are no tax breaks for them. Section 112 excludes from gross income compensation paid to members of the Armed Forces for serving in a combat zone, or was hospitalized on account of injuries incurred while serving in a combat zone. Section 122 excludes from gross income certain portions of retirement pay far too complex to describe in one sentence. Section 134 excludes from gross income the value of most allowances or in-kind benefits provided to a member or former member of the Armed Forces. I am unaware of any instance in which the IRS has required a member of the Armed Forces to include in gross income the value of any military honor, medal, badge, bar, or ribbon awarded to that person. Making it appear as though there are no federal tax breaks for members of the military does not nurture confidence in a candidate’s tax policy prowess.

There are far better ways to criticize an exclusion for Olympic medals than to confuse the issue with references to tax breaks for Broadway stars, hedge funds, and members of the military. The merits, or lack thereof, of an Olympic medal exclusion are a separate matter.

Monday, September 05, 2016

Robots Doing Tax Returns?

Perhaps it’s fortuitous that on labor day I share some thoughts about the prospect of even more jobs disappearing. According to this recent article in an Australian newspaper, robots using artificial intelligence could be preparing tax returns for Australian taxpayers.

Though I have always been eager to read about, play with, and even adapt technological advances, I have always done so carefully and with the imposition of a high standard. The standard is simple. The technology needs to generate results that have at least the quality they would have if an expert did the work. Because I understand technology, I understand how it can fail. And I understand that failure can be at least as bad, if not worse, than the outcome when an expert fails.

For me, until a technological “advance” is ready for prime time, it needs to remain in the world of testing and experimentation. It ought not become mandatory or widespread until it proves its superiority. It’s for that reason that I remain skeptical of self-driving vehicles, and my reluctance to embrace that technology has been affirmed by the unfortunate series of accidents, some fatal, generated by failures in the technology being used. Similarly, I remain hyper-critical of traffic signal software that leaves one vehicle sitting a red light for a minute and a half early on a Sunday morning when there are no other vehicles within half a mile of the intersection. The same disapproval exists for the systems that turn the light green for three seconds.

Technology is no better than the programmers who design the hardware and software. Sometimes I wonder if the advantages of multiple sets of eyes and brains reviewing the product are being lost on account of cost-cutting goals that misperceive the difference between long-term and short-term success.

The folks who think that artificial intelligence, which is nothing more than complex software, can replace tax return preparers face a stark reality. For some taxes, surely artificial intelligence has advantages. But for any tax preparation that requires judgment, wisdom, experience, and intuition, artificial intelligence fails. Perhaps decades from now, when neuroscientists have figured out how judgment, wisdom, experience, and intuition are reflected in the biochemical and electromagnetic functions of the human brain work, and software engineers have figured out how to translate those functions into computer code, the idea of robots doing federal income tax returns might come to a worthwhile fruition. Until then, the likelihood of crashes that weren’t supposed to happen and time wasted at badly programmed traffic signals will make the robot tax return preparer a fine wine that no one should drink before its time.

Friday, September 02, 2016

Is Tax Cheating Going to Increase?

In a recent opinion piece, Catherine Rampell predicts, “Tax cheating is about to rise in the United States.” Is she correct?

Rampell gives six reasons for her conclusion. Each deserves attention.

First, Rampell notes that “Congress has gutted Internal Revenue Service enforcement.” This is true. Will the attempt by certain members of Congress to hamper or destroy the IRS encourage more cheating? I think so.

Second, Rampell notes that “Budget cuts have also hurt IRS customer service.” This, too, is true. Will the decline in IRS assistance cause more cheating? I don’t think so. Those who call the IRS for help want to do the right thing. They pretty much are people who, without IRS help, will do their best to do the right thing. Will they make more mistakes? Certainly. But making mistakes while trying to comply with the law does not constitute cheating.

Third, Rampell points to “The growing perception that everyone else is doing it.” Is there a growing perception that everyone else is cheating? Probably. Does that mean that more people will cheat? Probably, though there are many people who have been raised properly and understand that just because “everyone else” is doing something is no reason to follow suit, particularly if what “everyone else” is doing is illegal or just plain stupid. The “everyone else is doing it” mantra is a characteristic of adolescence. Though some people don’t get past that stage, most people do.

Rampell calls attention to “Declining trust in government.” In one sense, with approval ratings of Congress almost as low as they can go, it’s challenging to think that trust in government can decline any further. In another sense, though, willingness to comply with the tax law is declining. However, a person who is less willing to comply is not necessarily cheating. Laziness in obtaining accurate information isn’t quite the same as inventing false information or hiding true information. On balance, taxpayers’ understandable distrust of many politicians and government officials, which is not quite the same as distrust of government, will create an environment more conducive to cheating.

Rampell reminds us that “The tax code gets more complicated every year.” This is so true. Complexity, though, is just as likely to encourage laziness and carelessness as it is to trigger active pursuit of fraudulent schemes and other tax cheating devices. Yet complexity alone is not a cause of noncompliance. Many laws and rules are particularly simple and yet are the object of overwhelming noncompliance. Speed limits, littering regulations, and restrictions on shoplifting are easy to understand, and yet are violated regularly by a higher percentage of the population than commits tax fraud.

Rampell notes “The rise of the ‘gig economy.’” She explains that the increase in jobs not subject to third-party reporting and withholding correlates with an increase in noncompliance. This is true. The question, though, is whether the increase in the “gig economy” is accompanied by a disproportionate increase in transactions not subject to third-party reporting. Rampell concedes that fewer business transactions are being undertaken for cash payments, and the increase in data collection generally gives the IRS more places to look for unreported income.

Rampell does not mention factors that I consider to be significant contributors to tax cheating. It is the increase in self-focus, the increase in greed, and the increase in harsh economic conditions that coalesce to tempt people to cheat on their taxes. It is the weakening of concerns for integrity and responsibility that make it possible for increasing numbers of people to succumb to that temptation. These are problems that will not go away with a simplified tax law and adequate IRS funding, as Rampell advocates. Of course I support simplifying the tax law and adequate funding of the IRS, but I also support increased attention to tax education in middle and high schools, and a broader dissemination and explanation of what happens with tax revenue. And somehow, some way, the sense of integrity and responsibility that was once a core value of the culture needs to be reinvigorated. That, however, is more than just a tax compliance problem.

So is tax cheating going to increase? Yes. The rate of increased noncompliance is debatable and subject to guessing, and the causes of tax cheating can be argued, but there’s no denying the trend lines.